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Topic: Law and Civil Liberties

As of this writing, 13 states have passed legislation legalizing medical marijuana. President Obama’s pledge to stop raiding medical marijuana facilities was met with praise from opponents of the drug war, but what does it mean for the future of drug policy?

Our society is not quite ready yet to completely end marijuana prohibition. So what we want to do is keep as many people from being arrested and put in jail as possible in the short run. One way of doing that is to legalize medical marijuana state by state.

Kampia spoke at a policy forum on medical marijuana at the Cato Institute in March.

Senator Jim Webb (D-Va) is calling for a national commission to review the American criminal justice system from top to bottom. Good for him. With more than seven million people under criminal justice supervision (prison, parole, probation), a thorough review is desperately needed. You can tell that Webb is new to the Congress because he is raising a subject that most of the long term incumbents would rather not discuss. As Glenn Greenwald observes:

For a Senator like Webb to spend his time trumpeting the evils of excessive prison rates, racial disparities in sentencing, the unjust effects of the Drug War, and disgustingly harsh conditions inside prisons is precisely the opposite of what every single political consultant would recommend that he do. There’s just no plausible explanation for what Webb’s actions other than the fact that he’s engaged in the noblest and rarest of conduct: advocating a position and pursuing an outcome because he actually believes in it and believes that, with reasoned argument, he can convince his fellow citizens to see the validity of his cause. And he is doing this despite the fact that it potentially poses substantial risks to his political self-interest and offers almost no prospect for political reward. Webb is far from perfect – he’s cast some truly bad votes since being elected – but, in this instance, not only his conduct but also his motives are highly commendable.

And speaking of Glenn Greenwald, he will be here at Cato this Friday to discuss his new study for Cato, Drug Decriminalization in Portugal. Portugal is treating drug use as a health problem, not a crime problem, and it is working rather well. When Senator Webb’s commission gets assembled, this report ought to be at the top of its reading list.

To register for the Greenwald forum, go here. For a discussion on mass incarceration, go here. For more Cato work on crime and drugs, go here and here.

Since 2008, more than 7,000 people have been killed in violence associated with the drug war in Mexico. Secretary of State Hillary Clinton is traveling to the region this week, and said Wednesday that the United States shares the blame for the violence.

In today’s Cato Daily Podcast, Cato scholar Doug Bandow offers analysis on how the U.S. should respond to the crisis on our southern border.

Ken Lammers, who blogs over at CrimLaw, recently posted a review of my new book, In the Name of Justice. By way of background, the book is an edited collection of essays. The lead essay is a reprint of the 1958 classic, “The Aims of the Criminal Law,” by Harvard Law Professor Henry Hart. Legal and criminal law experts, such as Judge Richard Posner and James Q. Wilson (among others), have written original essays about Hart’s ideas.

Among other things, Hart critiqued the doctrine of strict criminal liability–which essentially dispenses with the requirement of proving someone’s criminal intent. Hart says this is profoundly wrong. The essence of criminal conduct is that the person has done something which is blameworthy. With strict liability, prosecutors can condemn certain persons as “criminals” without proving that they have done anything that is truly blameworthy.

Judge Richard Posner’s essay offers a defense of the strict liability doctrine, but Ken Lammers is not persuaded. Here’s an excerpt:

Posner’s strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. “The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense.” (p. 97)

This pretty much brands Posner as someone who has not had actual trial experience. He’s never seen that trial wherein the immature 18 year old defendant (looking all of 14) has “raped” the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y’know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I’ve seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the “justice” of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning.

I agree. And statutory rape is just a single example of where the doctrine of strict liability has taken hold. Once that precedent was established, it has expanded elsewhere, as have the injustices. For example, the law bans felons from possessing guns and ammunition. Dane Yirkovsky found a bullet at his girlfriend’s house and put it in a dish on the dresser. Later, police search and find the bullet. Yirkovsky tells them that he put it there. Since he is an ex-con, he gets arrested on a felon-in-possession charge. And with mandatory minimum sentencing in place, he is now serving a fifteen year prison sentence. Under the law, Yirkovsky is “guilty.” But did he do anything that was really blameworthy? Can his conduct really be described as “criminal?”

If you line all the justices up and say… did they vote for the individual, or for the government? Kennedy is overwhelmingly in favor of the individual rather than the government, far more than any of his colleagues.

Author Helen Knowles examines how Kennedy’s background as a law student and classroom teacher has influenced his judicial philosophy. The book begins by examining Kennedy’s judicial thought in the context of libertarian thought. Knowles does not call the justice a libertarian. Instead, in a sympathetic but not uncritical analysis, she uses libertarian philosophy, focusing on privacy, race, and speech cases, to draw out Kennedy’s views about limited government and individual liberty. Please join us for a discussion of Justice Kennedy’s “modest libertarianism,” with comments by one of the nation’s foremost constitutional scholars, Professor Randy Barnett.